 All right. Hello. Good afternoon, almost, really happy to be here again. This is the 15th meeting of the PFS, 16th year. We missed one last year. It's my 10th time coming, so I'm glad I made it to double digits. My brother-in-law Tommy Turner's here this time, second time with me, and he asked me if I was gonna have any humor in my speech because some of these talks are a little dry, and I'm like, no, they're funny. Hans has a sense of humor himself. Sometimes I do start with a joke, although I think the Migtail types might think that's simping or something to the audience, but I gave a speech in New Hampshire about three years ago, and I opened with the joke, why do anarchists drink herbal tea? Because property is theft. But that one gets grown, so I won't tell that one here tonight. I gave a similar version of this talk at Porkfest earlier this year, and I opened with a bad joke, but after the talk, Juan Carpio, who's here, was with me. We were driving back to Boston, and I decided to give Hans a call because I had a long drive ahead of me, and right when Hans answered, I started choking on an Eminem I had swallowed, and so I was just coughing horribly, and I had to hand the phone to Juan, and Juan said, Professor Hoppe, Stefan is choking on an Eminem, and Hans said, oh, Stefan, call me back when you're not choking. Got it. So today I want to talk about constitutions. I mean, I've been a libertarian since about 1982 when I read The Fountainhead in high school, and I've seen lots of libertarian projects come and go over the years. A lot of utopian things. Many of you have probably heard of some of these because there are some that are still floating around now. I'm just going to go through a few of them. A lot of them are scams. A lot of them are short-lived. So you've had people propose that we start a libertarian society by having cruise ship nations, right? And that's now called Seasteading or the Blue Seat Institute. I think the original was called Oceania of the Atlantis Project. And then the same people that started that project proposed one called the Lifeboat Project, which was to build a spaceship to let humans escape the Earth and to escape the coming singularity. Every day, then you'll have someone who homestead an abandoned oil rig off the coast of a nation and call it their, you know, declare themselves king. A few years ago, I think it was just one or two years ago, there was a guy named Jameen Hoobner who was on the Tom Wood Show discussing his Creative Common Law project. And it was this anarcho-capitalist attempt to have like a legal code. And so I wrote him some comments and he invited me to be on the board of advisors. And earlier this year, I went to his website to look up something and I couldn't find anything to look familiar. And it turns out he changed it from Creative Common Law 1.0 to 2.0 and now it was anarcho-syndicalism and socialism. Guy totally changed his mind. But luckily, he took my name off the board of advisors. I call these people waystation libertarians, guys that you meet that have just been converted and they don't often last that long. So I like to wait and see if someone is a libertarian for five years before counting on them to be one for a long time. Professor Tom Bell has a project called ULEX, which is an open-source legal operating system. It's sort of like a draft private law code for a free society. Liberland, of course, which many of you know of, and has a constitution. And I helped draft an early version. It was published on Mises. It's called the Voluntarius Constitution. There was Gauss-Gulch Chili, which was an attempt to build a free society in Chile, but it was a scam. In Honduras, there are special economic zones that some people have tried to use to have free market zones there. And there's many others. And many other attempts to draft private constitutions, libertarian constitutions, etc. In fact, our mayor, the so-called president of Liberland, he was here a couple of times. He was on the boat trip with us, I remember. We were calling him Mr. President. How do you do Mr. President? It was kind of fun. So the question is, why do we even use the word constitution? Why do libertarians use it in a positive way when we talk about the United States Constitution or our ideal constitution? I think what happened was, due to the history of libertarianism, which I believe in the modern libertarian movement, it's a modern libertarian movement started roughly in the 50s and the 60s in the United States, primarily with On Rand and also some other thinkers like Milton Friedman and then Leonard Reed with the Foundation for Economic Education and then Mises and Rothbard and others. But because of that origin in the US and because the US, because On Rand herself and the others appreciated the role to freedom of the United States compared to where they came from and what had happened in Europe and On Rand in particular, who was comparing the United States to the Soviet Union, which he left and despised for good reason. So they have this sort of reverence for the US Constitution. Almost this assumption that it was quasi libertarian or almost libertarian. In fact, there's a scene at the end of On Rand's famous novel, Atlas Shrugged, where she has this wise judge, Narragansett. So here's the comment or here's the language. He sat at the table and the light of his lamp fell on the copy of an ancient document, Constitution. He had marked and crossed out the contradictions in his statements and had that had once been the cause of its destruction. He was now adding a new clause to its pages, Congress shall make no law abridging the freedom of production and trade. So and then there was there's a Constitution called the Libertarian Constitution. It's on the website of the National Constitution Center. They commissioned draft constitutions by liberals, conservatives and libertarians. And the libertarian one was written by Ilya Shapiro, who is a Cato guy, I think he's a law professor at George Mason's law school and he's pro lockdown or pro vaccine mandate. So he was really reliable libertarian. Tim Sandefur and Christine, Christina Mulligan. So they wrote it and here's what they wrote in their introduction to the Libertarian Constitution that they drafted. This was probably an easier project for us than for our conservative and progressive counterparts because the current United States Constitution is fundamentally a libertarian or more precisely classical liberal document. So much so that at the outset we joked that all we needed to do was to add and we mean at the end of every clause. Okay. So these guys have a different understanding of Constitution than we do. You know, I will say something I used to think like this as well when I was younger, even after I was an anarchist. I remember I submitted to Hans or I gave Hans a copy of a draft article I had written. I think it was on the the exclusionary rule, which is a rule of constitutional interpretation in the United States. And I was arguing for some libertarian interpretation of it or something and Hans says, you know, the piece is okay, but I don't know why you guys care about the Constitution so much. And I stopped and thought and he really made an impression on me. I thought, well, yeah, so there's two problems with that. Number one, it's very American centric, which I've grown to despise, like America is not the center of the universe. It doesn't need to be the center of the libertarian universe. Why do we talk about only the American Constitution and American law? And then and then second of all, it's yeah, the Constitution is not a libertarian thing at all. We think of it as a as a libertarian document because we have accepted the propaganda of the state itself. That's basically what happened was you had a group of people who wanted to form a new central government. And to do that, they needed to give it some legitimacy. So the legitimacy was the document that they passed as propaganda. The Constitution is just propaganda supporting the state. And to get it passed and to get the people to accept it, they called it a document that protects our rights. But of course, it only protects our rights from the new government that it's creating. So it would be easier to solve the problem of protecting your rights by not setting up the new state in the first place. However, still, others, I myself and others have over the years come up with proposals. How can we improve the Constitution? And not just the United States Constitution, but any Constitution of any government. And for us libertarians, what that means is how do we try to limit the power of the state so that it can do less harm to us? So are there things that would be improvements? Probably. Are they all futile? Probably because the government itself and its courts, I should say the state and its courts interpret the document that limits it. So it's a little bit futile. This Professor Hoppe has argued in this democracy book. But let's go through some possible improvements to the Constitution. Well, one idea would be decentralization, radical decentralization. And in the United States system, that could be implemented by respecting the federalism of the original system in which there's vertical separation of power. It's not just horizontal. So this is the idea of the Kentucky Resolution that Tom Woods has talked about. States have the power to nullify federal law. So that would be good. You could pass an amendment to the Constitution that gives the states the power to overturn Supreme Court decisions. You could have super majority requirements. That is, you can pass no law, except with two thirds vote of the Congress, which would be an improvement because, as I've argued here before, in fact, in my 2012 talk at the PFS, I talked about legislation. Legislation is not a proper way of making law. And this argument makes sense, even if you're not an anarchist. I mean, you don't have to be an anarchist to believe that. Even if you're just a normal libertarian, you should appreciate that law ought to be developed in a decentralized system like the common law or the Roman law or private courts, but not by legislation. Sunset provisions would be a good idea. Every law should expire in 10 years or something like that, unless it's automatic, unless it's renewed. Jury trials and important limitation on the state's power during nullification. The right to leave. Joe Sobrin, who was one of my favorite conservative, cum-libertarian writers, he proposed this amendment any state may by an activist legislature secede from the United States. So just an explicit right to leave. There's lots of other picayune things you could suggest. But as I noted before, there are problems of trying to perfect the Constitution because the purpose of the Constitution is to constitute, to make up, to create. It's not to protect rights, it's to create the state. So the original Constitution in the United States was the result of what was basically as Professor Hoppe has identified as a coup. Women in blacks didn't have rights, Native Americans were slaughtered. Slaves and poor people were conscripted to fight the war. Deserters were executed. George Washington took teeth out of slaves' mouths to make his false teeth. So this was not a pro-libertarian paradise. I'm going to read a quote from from Lou Rockwell in his chapter in, it's called A Life of Ideas, it's the chapter in the the festeriffs for Professor Hoppe that Guido Hulsman and I edited in 2009. Lou says something here that it's similar to what happened to me when Hans critiqued my constitutional article. This is Lou. I recall when when Hans spoke at a conference we held on American History and he gave a paper on the US Constitution, you might not think that a German economist could add anything to our knowledge on this topic. He argued that it represented a vast increase in government power and that this was its true purpose. He created a powerful central government with the cover of liberty as an excuse. He used it as a case in point and went further to argue that all constitutions are of the same type. In the name of limiting government which they purportedly do, they invariably appear in periods of history when the elites are regrouping to emerge from what they consider to be near anarchy. The Constitution then represents the assertion of power. When he finished you could hear a pin drop. I'm not sure that anyone was instantly persuaded. He had challenged everything we thought we knew about ourselves. The applause was polite but not enthusiastic. Yet his point stuck. So I do think Professor Hoppe's radical appreciation of the American Constitution has persuaded people. As has his democracy work in which he even criticized, if I recall, Rothbard and Mises for having sort of a soft spot for democracy, like viewing it as an alloyed progress over the previous system. And you know Professor Hoppe's argued that the move to democracy has not been an alloyed progress. So I think it should be clear to us that a libertarian constitution is a contradiction in terms and it's really futile to expect there to be paper limits that really will prevent the state from violating our rights because the state controls the interpretation of those limits. Joe Sobrin again had a great line. I've told this before and I never get a laugh and I don't know why. Maybe it's just me but I'm gonna try it again. He wrote this. What we need is an amendment forbidding the circumvention of the Constitution. It could read quote the Constitution should not be circumvented unquote. I just got a big laugh from any lawyers who may be reading this. See it never works. But it's brilliant. He's pointing out that lawyers know that there's no way you can always get around words. Basically it's impossible to prevent the Constitution from being circumvented by the state. It will always find a way to control us. In one of the good and one of the nice science fiction novels by the recently deceased L. Neil Smith, a libertarian science fiction writer, his two best books are Probability Broach and the Galatin Divergence. But he's got a third one called Tom Paine Maru. They're an alternate history based upon the idea that the Articles of Confederation in the United States never did get overturned and the constitutional coup attempt failed. So it's becoming like an anarchist paradise. And in that book the word Constitution is a square word so people will say it like they'll say God damn or something now. So I do like that. It's a refreshing word. So when we talk about libertarian, when we talk about libertarian constitutions, what do we mean? Because we obviously don't mean America, the American Constitution or state constitutions because states are unlibertarian and unjust and criminal. What we do need and what we do want is private law. So we want a law code. We want a governing law society and we might, some might call that a constitution but instead of being a constitution that sets up a government and gives it legitimacy and gives it power and creates it, it's just the law that everyone turns to to resolve disputes. Randy Barnett who is a libertarian law professor and thinker in his book Structure of Liberty talks about the distinction in the law between abstract legal principles which you can think of as natural rights and then the concrete application of those principles to everyday situations which is what we think of as law or concrete legal rules or he calls them legal precepts. So we have to keep that in mind that that's how any society would be. I mean when we meet here, when we talk as libertarians, we're generally talking about both. We talk about general principles like the non-aggression principle, individual rights, property rights and then we also talk about applications to given circumstances. So what the law would be would be, it would be a code of principles that develops similar to the way that the common law and the Roman law and the law merchant did develop in history. Rothbard wrote while the book establishes the general outlines of, this is the Ethics of Liberty, while the book establishes the general outlines of a system of libertarian law, it is only an outline, a prologaman on to what I hope will be a fully developed libertarian law code of the future. Hopefully libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail, for such a law code will be necessary for a libertarian society. And then later on he says, in practice this means taking the largely libertarian common law and correcting it by the use of man's reason before enshrining it as a permanently fixed libertarian code or constitution. So I would disagree with Rothbard's use of the word constitution here because we should think of it negatively like the characters in Elnil Smith's novel. And Rothbard here verges a little bit on excessive rationalism I hear. I believe I've written before that we have to be aware that there are limits to armchair theorizing. And the reason is when we give hypotheticals and we ask questions like, well how would the libertarian law in your society handle this situation? It's almost impossible to fully specify the context when you're imagining up a scenario. This is why in the law, the way the law itself actually has developed in the world, it's always been decentralized legal systems where there's a judge basically who hears disputes between two or more actual parties and he hears the evidence that they bring to the case and they argue for their case and if he asks questions he can ask questions and get more information and evidence. So he has the full contextual picture of what happened and he also knows the customs in that region. He knows the law that's come before that he's basing his decision upon and so the judge makes the decision and the law develops and grows that way. Hopefully based upon more or less libertarian fundamental principles. So when we get these situations like if you're in the desert and you're starving or there's only one bottle of water and there's two people, how would libertarian law solve that? I mean maybe the answer is libertarian law couldn't solve that. Maybe sometimes tragedy in the world is possible or maybe one of the guys is the aggressor and brought the other guy there or stole the other guy's water. We don't know so sometimes we can't answer these questions. So I think that the idea of drafting a libertarian law code from scratch in a detailed way is probably futile. But so what is the job of libertarian thinkers? Well our job is to be libertarian and for all of to think about it and to express in concise form what our beliefs are. And then you have people that write them down, spread the word and over time the body of libertarian theory has developed as it already has because we have that now. But you would have different regions in the world that have different laws in the sense of different applications of the general principles. Professor Hoppe was written on this, David Friedman, Rothbard, Professor Hoppe was covenant communities. You would have quote a libertarian world could and likely would be one with a great variety of locally separated communities engaging distinctly different and far-reaching discrimination. Of course David Friedman has a similar view in his machinery of freedom. Rothbard wrote, in a country or a world of totally private property including streets and private contractual neighborhoods consisting of property owners, these owners can make any sort of neighborhood contracts they wish. In practice then the country would truly be a gorgeous mosaic ranging from rowdy Greenwich Village type contractual neighborhoods to socially conservative homogeneous Wasp neighborhoods. But basically in a libertarian world you would have all of these societies would have contracts between each other which we could call treaties. International law would be the basic principles of law applied to all areas. It would basically be the non-aggression principle and contract law. So let's talk about the role of codification in scholars. So when you have disputes among people and the law givers in society or the judges make decisions, over time the body of law becomes more and more known and then sometimes it's written down. So one of the oldest would be the code of homorabi, 1755 B.C. Later on you had the Roman law the great system of the Roman law and the Roman law by the way developed developed similar to the way the common law developed. You would have decentralized decisions of jurists deciding disputes. This was codified or written down by the emperor Justinian in his corpus Juris civillis which is the term we used to cover the body of Roman law as written down in a few different works. One of which is the institutes of Justinian and also the digest of Roman law also called the pandex. And later on the Roman law that was applied in Europe was finally codified in the 1700s and the 1800s by civil codes starting with the French the code Napoleon and then that version of that was adopted in my home state Louisiana the only state in the United States which is a civil law state. So the two great systems of the world today are the civil law and the common law and the civil law is sort of the heir to the Roman law. And just a brief aside quite often libertarian scholars have praised the common law like Hayek and others like this because it's decentralized and they have been critical of the of the European law because it's legislated and it's written in a code but I found interesting Professor Hoppe one time in his lecture on the production of law and order natural order feudalism and federalism he said this a little side remark in English speaking countries there is a certain amount of pride in having the so-called common law which is in a way non-codified law case law the continental tradition has been for a long time different there we have had codified law Anglo-Saxons looked down on codified law and hail their non-codified common law I want to remark that Max Weber has a very interesting observation regarding this he sees the reason for this non-codification of the common law in the self interest of the lawyers to make the law difficult to understand for the layman and thus make a lot of money he emphasizes that codified law makes it possible for the layman on the street who can read to study the law book himself and go to court himself and point out here is the written down law and so forth so maybe this excessive pride that Anglo-Saxons have in their common law might be a little bit overdrawn I always appreciated that comment and he does have a point the civil codes of Europe are magnificent beautiful compilations of the law the main the main problem with them is that they are legislated so you have these scholars who wrote it down and then the legislature enacted it as law that's the primary problem with them is that they're legislation but as a work of scholarship they're beautiful and far more elegant than the common law now you do have in the common law systems you have you've been having you have private scholars who do commentaries which are very similar to the code so you first had Koch and his institute on the laws of England from 1628 and then later Blackstone whom many of you may have heard the commentaries in the law of England and then in the United States there's something called the restatements of the law done by the American Law Institute they're private and they're basically organized compilations of what the law is based upon the case law and then there's encyclopedias like Corpus Juris succundum which is named after Justinian's Corpus Juris civillis so what we need again it's a society with libertarians in it and then we need thinkers to help enunciate and articulate these principles now I mentioned I've been involved in various constitutional projects over the years and I've always been frustrated because like for example the Liberland project I was frustrated because it was never clear to me what he want what Vitt wanted because he was basically claiming ownership of this of this Terranolius this this land I don't think he is the owner of it but let's say he was well he wasn't really wanting to draft the constitution what he really wanted was a contract as the owner telling the tenants what what the rules are so that's really not a libertarian endeavor and then the other thing I've been frustrated about is I'm usually on a committee with other people and we don't always agree so we have to water it down to the lowest common denominator because not everyone's a radical anarchist or whatever so what I want to do is just write my own code but it won't be a detailed thing a detailed application it won't be a 500 word treat it's I'm thinking five or ten pages of just concisely expressing in systematic form all of our principles which is basically the unpacking of the non-aggression principle and the way we describe it I want to quote what Professor Hans wrote Professor Hopper wrote one time about this about his idea of a law code or the constitution as he called it in conjunction with the privatization of all assets according to the principles outlined so you see the principles or the general principles that he's discussed in theory of socialism and capitalism and his other works the government should adopt a private property constitution and declare it to be the immutable basic law for the entire country this constitution should be extremely brief and lay down the following principles in terms as unambiguously as possible every person apart from being the sole owner of his physical body has the right to employ his private property in any way he sees fit so long as in doing so he does not uninvitedly change the physical integrity of another person's body or property all interpersonal exchanges and all exchanges of property titles between private owners or to be voluntary contractual and these rights are absolute any person infringing on them is subject to prosecution by the victim in accordance with principles of proportionality and punishment so basically Professor Hopper is saying that what we should have is a code that recognizes self-ownership of your body and then of other resources and contractual title transfer so this is exactly how I would do it I would lay it out and I haven't finished writing my code yet but I can tell you how it's starting out okay so first we was very similar to what Professor Hopper has laid out first we would recognize that all law and all rights are basically the rights to control exclusive the rights to exclusive control of scarce resources over which there can be conflict and the whole purpose of law is to help conflict be avoided between human actors and then we recognize that there are two types of resources in the world one is the human body and the other is every other resource that we human human actors which have bodies employ as scarce means of action so in the case of human bodies the property rule is every person is presumed to be the owner of his body period I say presumed because you can lose your rights to your body if you commit an act of aggression because the victim is entitled to use force against your body to stop you from doing it or to retaliate against you but we're presumed to be self-owners and by the way this this so-called logical problem that some people find in the idea of self-ownership they'll say that well how can you be a self-owner if you are yourself it makes no sense or they'll accuse you of being religious and saying oh well then you must be implying there's a soul and the soul is the owner of the body I think this is all nonsense anyone who objects to the concept of self-ownership keep an eye on your wallet because they're coming after it okay and so for other resources we determine the ownership of the resource in accordance with basically three rules the first is original appropriation who had it first this has to be ruled because all property rights necessarily rest upon the prior later distinction which professor Hoppe elaborates in chapters one and two of his theory of socialism and capitalism because prior later distinction means that someone who has a resource now has a better presumptive claim to it than someone who comes later because this is what it means to have a property right in something it means that someone can't come take it from you and become the owner of it so the earlier person has the right to use it has a superior right over latecomers which would imply in almost like a regression theorem type analysis it would imply that if there's an unowned resource in the world that some human being wants to employ he has to have the right to do it because he's the first user and no one else is the owner no one can complain so original appropriation is almost a consequence of the prior later distinction and the very concept of rights themselves okay so the first rule is first original appropriation and the second rule will be contractual transfer that is the owner to be an owner of a resource means that you are the one who can decide whether other people are able to employ that resource that's what it means to be an owner so you can exclude someone you can deny them permission or you can grant them permission to use or have or take or consume the resource and your permission can be complicated or it can be simple it can be simple I can hand you an apple and it's gone I can hand you a dollar and now it's gone or I can make it complicated I can lease you my apartment for three months I can lease you a car for two days I can I can sell you a home and I can retain ownership of it on weekends you know so we can have a timeshare situation so the the manifestation of consent of an owner of a resource is what we mean by contract contract is the permission given by an owner of a thing to let someone else use it and in a contract usually if you're selling or giving the thing away that that permission is permanent so you're saying I give it to you completely so contract is actually in implication of the concept of ownership so this rule would be the second rule you would ask who owns this resource who had it first and was there was there a contract where title was changed when what this means is ownership of a resource can only come from two ways you find it unowned and you become the original appropriator or you purchase it from a previous owner those are the only ways now the third the third rule which is really a type of version of the second rule is if you commit an act of a tort or you're wrong against someone you violate their rights and when you violate someone's rights you owe them restitution or compensation so if you harm someone you might owe them some payment of money so that means some of the money that you own now is transferred to them but you can think of that as a type of contractual act because your act of aggression was consensual and voluntary on your part so by committing aggression it's as if you chose to transfer money to your victim okay so those are the that's the outline and then the law code would have other other legal principles right like retribution and proportionality restitution it would uphold a propensity to arbitrate negotiate and compromise you would have rules about property rights property law you'd have contract law rules on international law and treaties special areas like family law insurance and by the way the three rules for determining ownership of a scarce resource other than someone's body some people some people criticize libertarians because they believe that this that this way of looking at it means that no property rights are valid because there's always been conquest in the past so we can never trace our title all the way back to Adam and therefore all property rights are invalid so again it's like the person who's against self-ownership when you hear anyone saying that we're against lock-in property rights because there's been conquest in the past keep your hand on your wallet because they're coming after it we have to understand that that basically the original sin you might call it or the taint in property titles doesn't affect the validity of property rights today at all even Rothbard himself by the way has an interesting he almost implied in 1969 he implied that that because of the taint back in the chain of title property might be your title to property might not be good but then in 74 he clarified that he added a paragraph and he made it clear that he did not believe that so basically if you stole the land from someone or if you're the government yes you don't have a good title to the land but if you bought it from someone who bought it from someone and then sometime back in the past there was an act of theft you still have a better claim than anyone else in the world unless the heirs of the original owner who is expropriated can somehow prove their claim and get their property back which I do believe that they should be able to do that it's just that it's almost impossible in the real world for that to happen because acts that happened a long time ago are difficult to prove now because evidence is stale witnesses are dead records weren't kept very well back then but in principle I do believe that the owner of a resource does not lose title to it just because it's stolen and so then his heirs his descendants would have a right to get the property back but basically when someone owns property in today's world you use the principles that I've outlined to establish relative title so for example when two people have a dispute over a piece of real estate they don't have to trace their title back to Adam or back to the founding of their country they only have to trace it back to what's called a common ancestor and title because they both agree that this guy owned it at this time so then you follow from there and see which one has a better title from there so it doesn't matter if that guy that they trace it back to was a good guy or a bad guy because they're just trying to say which one of us has a better title with respect to each other anyway that would be the beginnings of a libertarian law code as you can see it would be pretty short just a few pages I believe and then we would have private courts private arbitration to settle matters and contracts in these neighborhood covenant communities which would flesh the law even further so I will rest here but thank you very much for your time